3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JUSTIN ODELL LANGFORD, Case No. 3:19-cv-00594-MMD-CSD
7 Petitioner, ORDER v. 8 WARDEN RENEE BAKER, et al., 9 Respondents. 10 11 I. SUMMARY 12 This habeas matter is before the Court on Petitioner Justin Odell Langford’s Motion 13 for Stay and Abeyance (ECF No. 162) and Motions for Enlargement of Time (ECF Nos. 14 166, 167, 168, 169). For the reasons discussed below, Petitioner’s Motion for Stay and 15 Abeyance is granted, and his Motions for Enlargement of Time are denied as moot. 16 Petitioner’s Motion for Discovery (ECF No. 128) and Respondents’ Motion to Dismiss 17 (ECF No. 154) are denied without prejudice. 18 II. BACKGROUND 19 On September 25, 2019, Petitioner initiated this federal proceeding by filing a pro 20 se petition alleging six grounds for relief with numerous subclaims. (ECF No. 1.) The 21 Court granted Respondents’ first motion to dismiss in part determining that Ground 2(D1) 22 will not be construed as a ground for relief, Grounds 2(K), (Y), (T), (U), (Y), (Z), and (A1) 23 are unexhausted, the second portion of Ground 2(W) alleging that trial counsel failed to 24 “request missing witness jury instruction” is unexhausted, and Grounds 3 and 4 are 25 dismissed with prejudice. (ECF No. 68.) The Court also deferred a ruling on exhaustion 26 and any procedural default of Grounds 2(B), (C), (D), (F), (Q), (R), and (B1). (Id.) 27 Respondents filed a second partial motion to dismiss. (ECF No. 71.) The Court 1 (D), (F), (Q), (R), and (B1) as procedurally barred. (ECF No. 80.) The Court found 2 Grounds 2(K), (Y), (T), (U), (Y), (Z), (A1), and the second portion of Ground 2(W) alleging 3 that trial counsel failed to “request missing witness jury instruction” unexhausted and 4 instructed Petitioner to elect to dismiss his unexhausted claims, dismiss his entire petition 5 without prejudice to return to state court to exhaust his unexhausted claims, or seek a 6 motion for stay and abeyance to hold his exhausted claims in abeyance while he returns 7 to state court to exhaust his unexhausted claims. (Id.) 8 Petitioner requested a stay and abeyance (ECF No. 83). On March 30, 2022, 9 however, Petitioner filed a declaration of election to abandon unexhausted claims 10 informing the Court of his intent to dismiss his unexhausted claims and pursue his 11 remaining claims. (ECF No. 91.) The Court therefore granted Petitioner’s request to 12 dismiss his unexhausted claims and denied his motion for stay and abeyance as moot. 13 (ECF No. 96.) 14 In July 2023, Petitioner filed a counseled amended petition. (ECF No. 122.) 15 Petitioner concedes that he raises Grounds Two, Three, Four, and Six in his amended 16 petition for the first time. (ECF No. 162 at 2.) He also asserts that some of his claims rely 17 on new evidence that Petitioner was unable to develop during his pro se state post- 18 conviction proceedings. (Id.) Petitioner is currently presenting Grounds Two, Three, Four, 19 and Six in state court and requests that the Court stay his federal habeas case while he 20 exhausts his claims in state court. (Id.) 21 III. DISCUSSION 22 A district court is authorized to stay an unexhausted petition in “limited 23 circumstances” to allow a petitioner to present unexhausted claims to the state court 24 without losing his right to federal habeas review due to the relevant one-year statute of 25 limitations. Rhines v. Weber, 544 U.S. 269, 273-75 (2005); Mena v. Long, 813 F.3d 907, 26 912 (9th Cir. 2016) (holding that district courts have authority to stay and hold in 27 abeyance both mixed petitions and “fully unexhausted petitions under the circumstances 28 1 set forth in Rhines”). Under the Rhines test, “a district court must stay a mixed petition 2 only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state 3 court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication 4 that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 5 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 6 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does 7 not require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. 8 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). But courts “must interpret whether a petitioner 9 has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction 10 in Rhines that the district court should only stay mixed petitions in ‘limited 11 circumstances.’” Wooten, 540 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts 12 must also “be mindful that AEDPA aims to encourage the finality of sentences and to 13 encourage petitioners to exhaust their claims in state court before filing in federal 14 court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276-77). 15 A statement that a habeas petitioner was pro se during his state post-conviction 16 proceedings is sufficient to constitute good cause for failing to exhaust claims. Dixon v. 17 Baker, 847 F.3d 714, 721 (9th Cir. 2017) (citing Martinez v. Ryan, 566 U.S. 1, 17 (2012)). 18 “A petitioner who is without counsel in state postconviction proceedings cannot be 19 expected to understand the technical requirements of exhaustion and should not be 20 denied the opportunity to exhaust a potentially meritorious claim simply because he 21 lacked counsel.” Dixon, 847 F.3d at 721. 22 Petitioner has shown good cause for his failure to exhaust his claims in state court 23 because he was not represented by post-conviction counsel. (ECF No. 165 at 4-5.) 24 Respondents assert that a stay would be futile and wasteful because, based on Shinn v. 25 Ramirez, 596 U.S. 366 (2022), the Court may not consider new evidence upon return to 26 this Court following a stay. The Court, however, need not reach a determination at this 27 time whether the Court will entertain new evidence upon a return to this Court following a 28 1 stay. Ramirez does not concern the good cause requirement for a Rhines stay. In addition 2 to Petitioner’s lack of post-conviction counsel, Petitioner asserts that he presents a 3 colorable argument that the state court can review his claims on the merits because he 4 is actually innocent.1 5 A claim is potentially meritorious unless “it is perfectly clear that the [petitioner] 6 does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th 7 Cir. 2005). Petitioner establishes that “at least one of his unexhausted claims is not ‘plainly 8 meritless.’” Dixon, 847 F.3d at 722. There is also no indication that Petitioner has 9 intentionally engaged in dilatory litigation tactics. Accordingly, the Court will grant 10 Petitioner’s motion for stay and abeyance. 11 IV. CONCLUSION 12 It is therefore ordered that Petitioner Justin Odell Langford’s Motion for Stay and 13 Abeyance (ECF No. 162) is granted. 14 It is further ordered that Petitioner’s Motion for Discovery (ECF No. 128) is denied 15 without prejudice. 16 It is further ordered that Respondents’ Motion to Dismiss (ECF No. 154) is denied 17 without prejudice to the reassertion of any and all defenses then applicable following the 18 stay, following upon a scheduling order directing a response. 19 It is further ordered that Petitioner’s Motions for Enlargement of Time (ECF Nos.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JUSTIN ODELL LANGFORD, Case No. 3:19-cv-00594-MMD-CSD
7 Petitioner, ORDER v. 8 WARDEN RENEE BAKER, et al., 9 Respondents. 10 11 I. SUMMARY 12 This habeas matter is before the Court on Petitioner Justin Odell Langford’s Motion 13 for Stay and Abeyance (ECF No. 162) and Motions for Enlargement of Time (ECF Nos. 14 166, 167, 168, 169). For the reasons discussed below, Petitioner’s Motion for Stay and 15 Abeyance is granted, and his Motions for Enlargement of Time are denied as moot. 16 Petitioner’s Motion for Discovery (ECF No. 128) and Respondents’ Motion to Dismiss 17 (ECF No. 154) are denied without prejudice. 18 II. BACKGROUND 19 On September 25, 2019, Petitioner initiated this federal proceeding by filing a pro 20 se petition alleging six grounds for relief with numerous subclaims. (ECF No. 1.) The 21 Court granted Respondents’ first motion to dismiss in part determining that Ground 2(D1) 22 will not be construed as a ground for relief, Grounds 2(K), (Y), (T), (U), (Y), (Z), and (A1) 23 are unexhausted, the second portion of Ground 2(W) alleging that trial counsel failed to 24 “request missing witness jury instruction” is unexhausted, and Grounds 3 and 4 are 25 dismissed with prejudice. (ECF No. 68.) The Court also deferred a ruling on exhaustion 26 and any procedural default of Grounds 2(B), (C), (D), (F), (Q), (R), and (B1). (Id.) 27 Respondents filed a second partial motion to dismiss. (ECF No. 71.) The Court 1 (D), (F), (Q), (R), and (B1) as procedurally barred. (ECF No. 80.) The Court found 2 Grounds 2(K), (Y), (T), (U), (Y), (Z), (A1), and the second portion of Ground 2(W) alleging 3 that trial counsel failed to “request missing witness jury instruction” unexhausted and 4 instructed Petitioner to elect to dismiss his unexhausted claims, dismiss his entire petition 5 without prejudice to return to state court to exhaust his unexhausted claims, or seek a 6 motion for stay and abeyance to hold his exhausted claims in abeyance while he returns 7 to state court to exhaust his unexhausted claims. (Id.) 8 Petitioner requested a stay and abeyance (ECF No. 83). On March 30, 2022, 9 however, Petitioner filed a declaration of election to abandon unexhausted claims 10 informing the Court of his intent to dismiss his unexhausted claims and pursue his 11 remaining claims. (ECF No. 91.) The Court therefore granted Petitioner’s request to 12 dismiss his unexhausted claims and denied his motion for stay and abeyance as moot. 13 (ECF No. 96.) 14 In July 2023, Petitioner filed a counseled amended petition. (ECF No. 122.) 15 Petitioner concedes that he raises Grounds Two, Three, Four, and Six in his amended 16 petition for the first time. (ECF No. 162 at 2.) He also asserts that some of his claims rely 17 on new evidence that Petitioner was unable to develop during his pro se state post- 18 conviction proceedings. (Id.) Petitioner is currently presenting Grounds Two, Three, Four, 19 and Six in state court and requests that the Court stay his federal habeas case while he 20 exhausts his claims in state court. (Id.) 21 III. DISCUSSION 22 A district court is authorized to stay an unexhausted petition in “limited 23 circumstances” to allow a petitioner to present unexhausted claims to the state court 24 without losing his right to federal habeas review due to the relevant one-year statute of 25 limitations. Rhines v. Weber, 544 U.S. 269, 273-75 (2005); Mena v. Long, 813 F.3d 907, 26 912 (9th Cir. 2016) (holding that district courts have authority to stay and hold in 27 abeyance both mixed petitions and “fully unexhausted petitions under the circumstances 28 1 set forth in Rhines”). Under the Rhines test, “a district court must stay a mixed petition 2 only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state 3 court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication 4 that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 5 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 6 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does 7 not require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. 8 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). But courts “must interpret whether a petitioner 9 has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction 10 in Rhines that the district court should only stay mixed petitions in ‘limited 11 circumstances.’” Wooten, 540 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts 12 must also “be mindful that AEDPA aims to encourage the finality of sentences and to 13 encourage petitioners to exhaust their claims in state court before filing in federal 14 court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276-77). 15 A statement that a habeas petitioner was pro se during his state post-conviction 16 proceedings is sufficient to constitute good cause for failing to exhaust claims. Dixon v. 17 Baker, 847 F.3d 714, 721 (9th Cir. 2017) (citing Martinez v. Ryan, 566 U.S. 1, 17 (2012)). 18 “A petitioner who is without counsel in state postconviction proceedings cannot be 19 expected to understand the technical requirements of exhaustion and should not be 20 denied the opportunity to exhaust a potentially meritorious claim simply because he 21 lacked counsel.” Dixon, 847 F.3d at 721. 22 Petitioner has shown good cause for his failure to exhaust his claims in state court 23 because he was not represented by post-conviction counsel. (ECF No. 165 at 4-5.) 24 Respondents assert that a stay would be futile and wasteful because, based on Shinn v. 25 Ramirez, 596 U.S. 366 (2022), the Court may not consider new evidence upon return to 26 this Court following a stay. The Court, however, need not reach a determination at this 27 time whether the Court will entertain new evidence upon a return to this Court following a 28 1 stay. Ramirez does not concern the good cause requirement for a Rhines stay. In addition 2 to Petitioner’s lack of post-conviction counsel, Petitioner asserts that he presents a 3 colorable argument that the state court can review his claims on the merits because he 4 is actually innocent.1 5 A claim is potentially meritorious unless “it is perfectly clear that the [petitioner] 6 does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th 7 Cir. 2005). Petitioner establishes that “at least one of his unexhausted claims is not ‘plainly 8 meritless.’” Dixon, 847 F.3d at 722. There is also no indication that Petitioner has 9 intentionally engaged in dilatory litigation tactics. Accordingly, the Court will grant 10 Petitioner’s motion for stay and abeyance. 11 IV. CONCLUSION 12 It is therefore ordered that Petitioner Justin Odell Langford’s Motion for Stay and 13 Abeyance (ECF No. 162) is granted. 14 It is further ordered that Petitioner’s Motion for Discovery (ECF No. 128) is denied 15 without prejudice. 16 It is further ordered that Respondents’ Motion to Dismiss (ECF No. 154) is denied 17 without prejudice to the reassertion of any and all defenses then applicable following the 18 stay, following upon a scheduling order directing a response. 19 It is further ordered that Petitioner’s Motions for Enlargement of Time (ECF Nos. 20 166, 167, 168, 169) are denied as moot. 21 It is further ordered that this action is stayed pending exhaustion of the 22 unexhausted claims in the amended petition. 23 It is further ordered that the grant of a stay is conditioned upon Petitioner filing, if 24 same is not already pending, a state post-conviction petition or other appropriate 25
26 1See Schlup v. Delo, 513 U.S. 298 (1994); Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc) (A “credible claim of actual innocence constitutes an equitable 27 exception to AEDPA’s limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on 28 the merits.”). 1 || proceeding in state district court within 45 days of entry of this order and returning to 2 || federal court with a motion to reopen within 45 days of issuance of the remittitur by the 3 || Supreme Court of Nevada at the conclusion of all state court proceedings. 4 It is further ordered that with any motion to reopen filed following completion of all 5 || state court proceedings, Petitioner: (a) shall attach supplemental exhibits containing the 6 || new state court pleadings and the state court written decisions thereon; and (b) if 7 || Petitioner intends to amend the federal petition, shall file a motion for leave to amend 8 || along with the proposed amended petition or a motion for extension of time to move for 9 || leave. 10 The Clerk of Court is directed to administratively close this action until such time 11 || as the Court grants a motion to reopen the matter. 12 It is further ordered that the Court will reset the briefing schedule upon reopening 13 || the case and lifting the stay. 14 DATED THIS Day of May 2024.
16 7 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 2If certiorari review will be sought or thereafter is being sought, either party may move to extend the stay for the duration of such proceedings. Cf. Lawrence v. Florida, 28 || 549 U.S. 327, 335 (2007).